Are We There Yet?

• Author: Erin Rhinehart, Len Niehoff
• Pages: 22-26

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 22

Are We There Yet?

Discovery for the New Litigator

ERIN RHINEHART AND LEN NIEHOFF

Erin Rhinehart is a co-managing partner at Faruki PLL, Dayton, Ohio, and an executive editor of Litigation. Len Niehoff is Professor from

Practice at the University of Michigan Law School, of counsel to Honigman LLP in Ann Arbor, and an associate editor of Litigation.

“Our battered suitcases were piled on the sidewalk again;

we had longer ways to go. But no matter, the road is life.”

—Jack Kerouac

If the road is life, then discovery is litigation. It is how we reach

our destination. Unfortunately, discovery is like getting there

with someone in the backseat.

Anyone who has ever traveled with passengers, especially

children, knows how it plays out. In the beginning, everybody

is excited. Everyone gleefully piles into the car, eager to launch.

No one has any trouble amusing themselves. A couple hours in, a

bathroom break and gas station snack later, it hits. The adrenaline

wears off and the tedium kicks in. And then you hear the dreaded

cry coming from the rear: Are we there yet?

Like any road trip, discovery has its highs and lows. Developing

a good discovery plan can be interesting and rewarding. Discovery

brings us the facts—and the evidence we need to prove them. It

fills the gaps in our case. Plus, without discovery, we would not

know the thrill of finding that gem of a document, securing the

admission during a deposition, or uncovering those deliciously

indiscreet internal emails. Litigation without discovery would be

like riding in a car blindfolded; there would be no way to mark

our progress, we would miss all the roadside attractions, and bad

things would almost certainly happen.

But discovery can also be awful. It is long, painful, often con-

tentious, always time-consuming and expensive, and frequent-

ly fraught with unnecessary skirmishes that take place under

the guise of genteel or congenial “meet-and-confers.” We find

ourselves dealing with difficult lawyers and even more difficult

witnesses—some of whom may be on our side. It can be like a

road trip through a construction zone, during a snowstorm, sur-

rounded by student drivers.

So how can we make the best of it? How can we master its

potential? How can we use it strategically, effectively, and ef-

ficiently? Our civil procedure class in law school may have in-

troduced us to Rules 26 through 37, but how do we learn when

and how to deploy the right discovery tool? If we master these

lessons, can we actually—gasp—enjoy the ride of discovery? After

all, it is about the journey, not the destination, right? Isn’t that

what Jack Kerouac told us? And how can we resist advice from

someone that cool?

In this metaphor, we litigators are the drivers and our clients

are the often unhappy and increasingly grumpy passengers. They

are constantly bellowing from the discomfort of the backseat,

“How much farther?” “It’s going to cost how much?” And, of

course, “Are we there yet?”Whether “there” is trial, settlement,

or judgment, we must figure out how to get them where they want

to go. We must navigate, drive, and course-correct throughout it